Top Court Narrowly Finds Fantasy Sports Gambling Constitutional

On March 22, 2022, the New York Court of Appeals—New York’s highest state court—upheld a 2016 law allowing fantasy sports gambling. This ruling is unfortunate.

New Yorkers for Constitutional Freedoms has consistently argued that the 2016 law is unconstitutional. Last year, Albany Update noted that “Article I, Section Nine of The Constitution of the State of New York bans gambling, but creates exceptions for the state lottery, state-licensed casinos, and pari-mutuel betting on horse racing.” Albany Update went on to assert that by passing the 2016 law, the Legislature had “attempted to sidestep the constitutional ban on gambling by asserting that fantasy sports gambling is a game of skill and not a game of chance.”

The Court’s decision in White v. Cuomo followed years of litigation by a group called Stop Predatory Gambling. In 2021, the Appellate Division found the 2016 fantasy sports gambling law unconstitutional. The Court of Appeals reversed the Appellate Division’s decision. Writing for the majority, Chief Judge Janet DiFiore reasoned that “the outcome of [an] interactive fantasy sports contest ‘turns — not on the performance of real-life athletes, as it would with respect to a bet or wager — but on whether the participant has skillfully composed and managed a virtual roster so as to garner more fantasy points than rosters composed by other participants.’” On that basis, Judge DiFiore concluded that fantasy sports do not constitute gambling because they are games of skill, not games of chance.

Chief Judge DiFiore, Judge Anthony Cannataro, and Judge Madeline Singas voted to uphold the fantasy sports law, while Judges Jenny Rivera, Shirley Troutman, and Rowan Wilson voted to strike it down. Because Judge Michael Garcia recused himself from the case, Presiding Justice Hector LaSalle of the Appellate Division, Second Department cast the tiebreaking vote; Justice LaSalle voted to uphold the fantasy sports law.

Sadly, the Court’s decision may encourage more fantasy sports gambling operators to go into business in New York.